On September 30, the Council on American-Islamic Relations (CAIR) expressed concerns over recently revised and publicly posted FBI Domestic Investigations and Operations Guide (DIOG). Specifically, CAIR complained that a substantial portion of the DIOG was "whited out" and did not disclose the policies covered by that section.
The ACLU is a co-complainer with CAIR in this matter. Michael Macleod-Ball, acting director of its Washington, DC legislative office, stated, "The FBI has considerable authority - and a noted history of abusing that authority. Its investigative powers must have nothing less than clear, bright and easily understood boundaries."
The DIOG is 258 pages of clear, and understandable instructions on how the FBI conducts its domestic investigative and intelligence operations. These policies are replete with admonitions concerning the protection of Constitutional and civil rights. These policies link directly to similar Attorney General guidelines, requiring specific high level FBI headquarters and Department of Justice approval for the FBI to engage in certain kinds of investigative or intelligence gathering operations, including those that target religious organizations or prominent religious figures and prohibiting investigative efforts focused on First Amendment-protected activities.
These are the documented facts. Facts that are conveniently ignored by CAIR and similar Islamist apologist organizations as they seek to have these issues viewed through their muddied perspective.
CAIR contends that Part 16, dealing with "undisclosed participation," covers the use of informants working undercover in mosques. This has been a major issue of contention with CAIR and other Islamist groups, who believe the FBI indiscriminately and unjustifiably sends undercover informants into mosques even when there is no criminal predicate to do so. This issue came to a near boiling point with the arrest by the FBI in southern California of Ahmadullah Niazi, who was charged with immigration fraud stemming from a counter-terrorism investigation. That investigation employed a confidential informant who met with Niazi in a local mosque. As the Investigative Project on Terrorism reported in April, CAIR's concerns did not rightly consider the facts.
CAIR and other Islamist apologists ignore that Part 16 of the DIOG (page 242) pertains in large part to the FBI's role as an intelligence agency and the collection of information related to foreign intelligence. Those intelligence provisions of the DIOG arguably are kept from public release because they deal with the sources and methods of collecting intelligence. It should be noted, however, that "undisclosed participation" operations by the FBI may also be undertaken when the FBI conducts its law enforcement investigations, but only under strictly controlled and approved circumstances.
These operations are clearly authorized by Presidential Executive Order (E.O.), specifically E.O. 12333. The E.O. Subsection related to "undisclosed participation" is also very specific about such operations being undertaken for the purpose of influencing the activities of an organization or its members. Subsection 2.9 states in part:
No such participation may be undertaken for the purpose of influencing the activity of the organization or its members except in cases where:
(a) The participation is undertaken on behalf of the FBI in the course of a lawful investigation; or
(b) The organization concerned is composed primarily of individuals who are not United States persons and is reasonably believed to be acting on behalf of a foreign power.
This provides clear authorization for the FBI to engage in such an operation if it is in the course of a lawful investigation or related to foreign counterintelligence.
The DIOG also clearly addresses how the FBI can pursue investigative operations involving a "Sensitive Investigative Matter" (page 57) that can include religious organizations or prominent members thereof.
5.7. (U) Sensitive Investigative Matter / Academic Nexus / Buckley Amendment
A. (U//FOUO) Sensitive Investigative Matter: An investigative matter involving the activities of a domestic public official or political candidate (involving corruption or a threat to the national security), religious or political organization or individual prominent in such an organization, or news media, or any other matter which, in the judgment of the official authorizing an investigation, should be brought to the attention of FBI Headquarters and other DOJ officials. (AGG-Dom, Part VII.N.)
This policy means that investigative operations targeting religious organizations or prominent religious persons require approval at FBI headquarters and/or the Department of Justice. This approval process requires detailed justification and is subject to several levels of legal review. Such operations cannot legally be undertaken indiscriminately nor without an articulated justification.
These sensitive investigative matters often involve undercover operations, including the kind about which CAIR complains, wherein an informant may be sent into a mosque to gather evidence or intelligence. Part of CAIR's complaint involves what they perceive to be a relatively low standard for the FBI to initiate an "assessment" operation, specifically the wording "no particular factual predication" in the commencement of an assessment operation. An assessment is an inquiry short of a predicated investigation and, per the DIOG (first page of the link), requires an "authorized purpose" and may be carried out to "detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence. (AGG-Dom, Part II and Part II.A) (U//FOUO) Although "no particular factual predication" is required, the basis of an assessment cannot be arbitrary or groundless speculation, nor can an assessment be based solely on the exercise of First Amendment protected activities or on the race, ethnicity, national origin or religion of the subject."
The DIOG prohibits undercover operations in the conduct of "assessments." Further, assessments conducted relative to foreign intelligence matters must be approved by FBI headquarters.